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"La protección de los derechos humanos a través del control de los abusos del poder: la labor del Defensor del Pueblo de la República Argentina", pronunciada en la Conferencia Mundial de IACOLE (International Association for Civilian Oversight of Law Enforcement - Asociación Internacional para la Supervisión Civil de la Aplicación de la Ley), Ottawa, 11 de setiembre de 1997.

The protection of Human Rights through the control of misuse of power: The Argentine Public Defender’s work

DR. JORGE LUIS MAIORANO
Public Defender of the Argentine Republic
Vicepresident of the International Ombudsman Institute


1.    First of all, I would like to thank IACOLE’s President, my dear friend Mark Gissiner, for kindly inviting me last December to participate in the International Conference that is held in this hospitable city of Ottawa.

I cannot deny that, as Ombudsman of the Argentine Republic, this is a special occasion you are offering me to share my experience and yours. We should remember that, though there are some differences regarding our offices’ positions and functions, we have a common preoccupation: the constitution of a fairer society which dignifies the human being, a society where the citizen’s rights have a full sociological validity and where there  is a deep collective consciousness that turns public opinion into power’s true shadow of ethics.

2.    I wish to stress, at the same time, my conviction that events such as the one gathering us today --which, I am sure, will be completely successful-- have a significant value as it lets us know, through the participation of these distinguished figures, the extension of the mission the IACOLE has undertaken as well as its beneficial effects.

3.    I have been advised to speak about the situation in my country, the Argentine Republic, regarding two main issues: a) further development of the relations between law enforcement agencies and the community, through civilian oversight of actual and effective exercise of the rules; and b) protection of the interests of the community and the law enforcement agencies through a fair and profound behaviour of the staff from law enforcement agencies and institutions.

In my opinion, the latter is included in the former since, at least under our procedures, the aforementioned civilian oversight will necessarily lead to the evaluation of law enforcement agents’ behaviour, both civil servants’ and security forces’.

4.   I will first refer to those mechanisms that are external to the police and to the security organisations that revise and analyse their conduct, how such mechanisms are applied in my country and, mainly, whether they are effective.

I must say that the federal structure of the Argentine State, which is similar but not identical to the Canadian one, implies the existence of national or federal police and security forces, and of no less than twenty-two organisations corresponding to each Province.

In order to be brief, I will mention just the national security forces. They are the following: the Argentine Federal Police, with its headquarters in Buenos Aires City, capital of Argentina, and local offices in all the provinces; the National Border Patrol, responsible for the surveillance and security at land and river frontiers; the National Coast Guard, devoted to watching our sea and river borders; and the National Prison Service, in charge of the custody and surveillance of the accused and convicted in national prisons.

5.     Each of these security bodies or forces have court record offices and legal advisory services that investigate and eventually punish their members’ criminal or irregular conducts (insubordination, offences against property, etc.). However, most of their activities are far form the oversight of citizens’ or prisoners’ human rights.

6.     Thus, the significant task of investigating those actions detrimental to human rights on the part of any member of such institutions is carried out by bodies which are not related to the structure of the security forces and in the following way:

a) through the federal justice system which has a sphere of competence in this field and which, for more than four years, has benefited from the incorporation of oral trials;

b)  through agencies, institutions or bodies, that belong both to the National Government and to the State. Among the administrative bodies, I would like to mention the

Prison Controlling Office created by a decree of the Argentine President in August 1993. I myself fostered and made effective this position of executive Ombudsman with experience in prison matters when I was Minister of Justice of my country during the period 1992 - 1994. The missions and functions of said body are: 1. to visit all prisons of the Federal Prison Service; 2. to submit reports to the Ministry of Justice on the material and human conditions that affect prisons’ inmates; 3. to investigate actions that damage prisoners’ rights; 4. to make recommendations of particular or general scope in order to prevent any violation of these rights.

When I proposed the President of our Nation the creation of the prison Ombudsman position, I took into account mainly two different, but at the same time, supplementary reasons: first, that at that moment the figure of the Public Defender had not been incorporated to the Argentine constitutional legal system yet; second, that in certain groups of people --such as the elderly lodged in geriatric institutions, sick people committed to psychiatric hospitals and prisoners deprived of their freedom--, some conditions may be conducive to more frequent violations of their human rights, precisely because of their situation of inferiority or helplessness.

From the State and not from the Government, we control the law enforcement through, for example, the figure of the National Public Defender, whose office I preside. I will speak about it in the second part of my presentation.

c) through some private bodies, created by individuals and supported by themselves or by foundations; and finally

d) in a significant and growing way, through the serious and responsible press.

As you can see, they combine to achieve a greater protection of human resources, government organisations and private institutions created for those purposes.

7.    The external mechanisms mentioned in items b) y c) have shown on many occasions their efficacy to gather and document situations that do not acknowledge civil rights, by filing the corresponding accusations and becoming interested in the follow-up of the respective proceeding. In the case of private entities, their claims are made, repeatedly and consistently, to the institution under my responsibility which has made not only criminal accusations but also, in some cases, has filed lawsuits to stop the reported de facto state.

8.    I think this is the right moment to remind you, even though I am sure you do not ignore it, that my country underwent through extreme periods of de facto governments (1966-1973), (1976-1983) and of merciless confrontations between armed groups and the National Armed Forces. Only with the return to the constitutional system, by late 1982, did the protection of civil rights, which those military regimes neglected or ignored, begin to be gradually organised. So long periods of virtual disregard of the theory --and, unfortunately, of the practice of human rights-- have led our population in general and its youngest sectors in particular to ignore these subjects, whose relevance is unknown. Naturally, these deficiencies have been certainly reflected on the members of the security forces.

Protected by a really authoritarian culture in retreat and as an answer to the demands of the Argentine society, deep transformations took place in the human rights protection regime in less than fifteen years. In that sense, undoubtedly, the most outstanding event was the reform to the Argentine Constitution in 1994, which granted constitutional hierarchy to several International Pacts, Conventions and Treaties of a pure guarantee nature and which also assigned the legal hierarchy of National Authority to the Public Defender .

It is important to point out that the two democratic governments following the end of the dictatorship agreed on the creation and enforcement of an extensive program for teaching and spreading civil rights. The purpose was that people know their own rights and respect  the  others’ and that officials, in general, and members of the armed forces, in particular, learn the unavoidable need to honestly respect individual rights.

I have stated so in the Third Annual Report, submitted to my country’s  National Congress a few months ago expressing that “...the increase of complaints filed by individuals shows that there is a greater concern on the part of citizens as regards the defence of their rights. This indicates that a cultural change is taking place...” (volume I, pages 96/97).

We have to remember that, though we usually seek the protection of civil rights in cases of acts or omissions by the authorities, there is not much difference, from the victim’s point of view, whether the insult or injury is caused by a powerful company or an abusive exploiter of virgin lands.

9.    The other subject on which I was asked to express my thoughts is related to the protection of interests of the community and law enforcement agencies “through the fair and deep examination of the behaviour of law enforcement agencies’ personnel”.

To this regard, I recall that the permanent tension between authority and freedom is an efficient cause of the efforts carried out to improve the authority controlling systems all over the world. The history of mankind is a continuous knitting and unknitting of abuses committed by the authority and of struggles, sometimes bloody ones, for freedom. The history of human race --which from Hammurabi or Antigone to Helsinki has sculpted immortal monuments in defence of freedom and justice-- is glorious as well despite the intolerance or arbitrariness committed by dictators, chiefs, absolute or general kings during some dark periods.

The long marches of peoples towards the desired goals of law and justice, from prehistory to the end of the 20th century, are parallel to the societies’ and individuals’ awareness of the fundamental rights. To show it, there are three special moments in this birth of the world civil consciousness: the Declaration of the people of Virginia, that led to the American independence in 1976; the French Declaration of Human and Civil Rights; and the Universal Declaration of the United Nations in 1948.
In my country, both the mass media work, by making public investigations carried out by independent journalists, and the growing pressure from society, which demands effective measures to stop those abuses, have determined corrective and disciplinary measures in the core of the security forces that ended up in criminal actions, suspensions and dismissals.

10.    I would like now, before my time is over, to tell you some reflections and experiences acquired during almost three years in the position of Public Defender of the Argentine Republic.

Established by a law passed at the end of 1993, the figure of the Argentine National Ombudsman was promoted to the rank of National Authority, with the constitutional reform that has been in force since August 1994. Section 86 of our Constitution expressly sets forth that “The Public Defender is an independent body established within the National Congress sphere, which shall act with full functional autonomy, without receiving instructions from any authority. His mission is the defence and protection of human rights and other rights, guarantees and interests protected under this Constitution and the laws, in view of deeds, acts or omissions by the administration; and the control of the exercise of public administrative functions. The Public Defender has a procedural legal standing. He is appointed and removed from office by the Congress with the vote of the two thirds of its members present in each House. He enjoys the same immunities and privileges as legislators’. The term of his position will be five years, being allowed to be reelected again only once. The organisation and operation of this Institution shall be governed by a special law”.

I took office on October 17th, 1994 with the responsibility that the creation of a new state institution implies. For such purposes, since the First Annual Report, submitted in 1995, I have pointed out which is the profile that this figure should have. Thus, for example, 1) he must act with complete and endless independence from any political or sectorial pressure; it is not a body of the Government in office nor an attachment to any political party nor an absorbing element of any party dispute; 2) he should not be a cosmetic or aesthetic figure; on the contrary, it should be serious and objective; 3) he must be prudent, which should not be understood as a synonym of complacency with power or weakness when learning about any violation; 4) he cannot aim at substituting traditional bodies and procedures of control: the Ombudsman is justified only as a supplement; 5) the adequate profile is that of a critical cooperator to the authority and not its sensational opponent; 6) for those purposes and whenever the circumstances allow so, he will do his best in order to persevere in his mediating function between the Administration and citizens; 7) he must provide the solution to the problems posed by those who complain; and he cannot forget, at any moment, that those problems are symptoms or effects of deeper causes, which should be overcome; 8) finally, the Public Defender is a means for deep communication and solidarity among people.

In the last Annual Report submitted to the Argentine Congress on May 26th this year, I pointed out that “The Public Defender cannot adopt a conformist attitude towards the pathology he is aware of. He must be committed to a vision of a fairer society that dignifies the human being and take actions on the factors that distort the values of a community. He must be an innovator, almost a rebel with cause, since the one who exercises this responsibility cannot be less than a rebel in face of the misfortunes that his work shows him…” (volume 1, page 5).

This attitude of rebelliousness, which makes him adopt a biased position for the benefit of the weak and the less favoured, is justified by the fact that the institution is in direct contact with the miseries of society, with the dissatisfaction caused by the misuse of public and private, political and economic power. And that is why he is able to provide a radiography of the wounded area of a country’s social body and of the degree of acknowledgement and respect towards the population’s rights.

In full exercise of my powers and acting with absolute functional independence, I have had the obligation to denounce my country’s  Supreme Court of Justice to the Interamerican Commission for Human Rights for the delay of the justice system in more than 65,000 court files where retirement claims were processed. I have also promoted legal action for protection of rights guaranteed in our Constitution against the Executive branch of an Argentine province, Río Negro, for violating human rights of prison inmates. A guilty verdict has ordered the executive authority to surmount the denounced offences.
All the inhabitants can make their claims before the Institution I represent, denouncing any violation of their civil rights. Its head can also act by virtue of his office, that is to say, without waiting for a certain complaint to arrive. Both in his function of rights protection and control of the use of power, the investigative profile assumed by the Public Defender is relevant. Thus, the Institution has investigated the alleged lack of supply of medicines for the recuperation of drug addicts; the alleged transfer to third parties of lands reserved to Indian communities; the expiration of thousands of vaccine doses; the lack of adequate treatment for pathological waste; the alleged lack of medicines for the treatment of people suffering from AIDS, etc.

As this new institution starts inserting itself in the administrative network and social tissue, it shows its singular and atypical nature. In fact, it is a power of the State looking at the people. It is a State body or agency, beneficial to society; a figure that combines persuasion (the ombudsman does not defeat, it convinces) with the possibility of resorting to coercion in his instructive function. He faces the impossibility of revoking acts with a wide power to question administrative decisions or behaviours. He enriches his persuasive power with the high impact produced by his statements to the press, in any of his expressions.

In societies that receive continuous signals that feed the weakening process of traditional institutions, that do not believe in the justice system when there is evidence of impunity, maybe a new power is emerging: the power of public opinion, the power of the people. Maybe, in this way, the typical subjective control is replaced by the moderate social control of power. Experience indicates that a public questioning, an ethical reproach, may attain faster and more certain effects than a legal process.

In Argentina, the Public Defender of the Nation has received denounces on abuses committed by the police and other security forces. Those denounces provoke actions through which we seek to clarify and visualise the causes. Here we can see again the concept of the “radiographer of society”, since the Public Defender, from the State itself, can offer proposals, recommendations and suggestions that improve the behaviour of said forces.

Fortunately, in my country, the violation of the so called “first generation” human rights --that is, life, freedom and dignity-- is not the priority that society claims for to the Institution I represent. On the other hand, we have had to intervene consistently during these three years in cases of offence, injury and violation to the economic, social and cultural rights and to the so called “rights of collective influence”. So it seems that we have come to a vital minimum level of a society whose basic human rights are essentially respected, though the horizon of a society where economic and social differences decrease instead of becoming deeper is still far away. I must say that the serious deficiencies which diminish the full validity of the economic, social and cultural rights keep a tight hold on the person’s ability to exercise civil and political rights.

11.    Finally, I have been asked to briefly refer to the issue of corruption. This phenomenon is neither new nor exclusive of a weak or backward group of nations but, on the contrary, is an open wound in most or almost all countries, no matter whether they are rich or poor, developing or developed.

Of course, this does not sound like a good excuse nor an absolutely satisfactory explanation, but I do understand the huge difficulties that governments face when they try to stop or limit the causes of corruption. What I meant when I recently referred to this open wound is that this corruption injury is actually eroding the very foundations of some societies.

There is a form of corruption in powerful organisations --let’s call them by their name: the mafia-- which collect huge amounts of money, in some cases, exceeding national budgets, by means of repeated criminal actions that are extremely serious and highly risky for society. In this way, they can be sure of their freedom of action and impunity by buying the willpower of any authority, especially, that of the police and the justice system, and these are the very responsible for the prevention and suppression of such crimes.

Fortunately, the Argentine Republic is not one of those countries where this kind of corruption is almost dominant. It has the necessary institutions and means to prevent the advance of corruption, to which we have to add certain measures to be adopted that will help in the detection and punishment of such kind of corruption.

Regarding this last issue, I would like to point out that the constitutional reform of 1994 incorporated a regulation, Section 36, under which the Congress of the Nation is obliged to pass a law for public ethics. Said law has been already passed by one of the two Houses. The rule sets forth the publicity of government officers’ and authorities’ affidavits and assigns the National Public Defender or Ombudsman the task of receiving any denounce and conducting any preliminary investigation on the reported events.

The aforementioned Section of our National Constitution provides for an exemplary rule when stating that “any person who commits a serious deliberate crime involving acquisition of wealth against the State will  be threatening the democratic system”.

Furthermore, the Argentine Criminal Law includes a regulation under which “any individual who does not justify the origin of an acquisition of wealth of his or her own or of any other person used to cover it, after taking a public office or position, shall be punished with detention or imprisonment for a period of two to six years and complete disqualification for a period of  three to ten years...”.

12.     I am about to finish my speech, and I hope I have responded to your trust --according to what the reality in my country offers, my knowledge about it and the time given to me. I would like to recall that classical rule of modern constitutionalism that says: the more power, the more control and responsibility. Our societies are changing some of the traditional features of power: they do not want to be mere witnesses or citizens when elections come, or taxpayers when paying for their taxes; they want to participate in decision-making. This is not about altering the formal authority of power but changing the traditional way of exercising such power. The controlling bodies, agencies and institutions are irreplaceable elements in the essential mission of restricting the use of power. And in those relationships of subordination, such as the ones in security or police forces, their role is even more relevant and their mission has even greater significance.